Saudi Cultural Missions Theses & Dissertations
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Item Restricted Third-Party Funding in International Commercial Arbitration(University of Cabmbridge, 2024) Alturki, Ibrahim Abdullah I; H Andrews, NeilABSTRACT This thesis explores the complexities surrounding third-party funding (‘TPF’) in international commercial arbitration, comprehensively examining the relevant ethical and legal challenges. The research addresses how TPF has evolved from the shadowy confines of maintenance and champerty into a more accepted method to access justice. It investigates various funding mechanisms and identifies ethical issues and procedural flaws in TPF. Chapter One lays the groundwork for the thesis by outlining the research questions, key issues and scope. It critically reviews the existing literature on TPF, identifying significant gaps and highlighting the contributions of this research. The chapter concludes with a detailed description of the methodologies employed, including doctrinal, theoretical, comparative, and reform-oriented approaches, demonstrating how they collectively support a thorough investigation of the topic. Chapter Two explains the nature of TPF and examines its history and theoretical foundations, including tracing its roots within ancient societies, considering the impediments of the doctrines of maintenance and champerty and noting the modern appeal of TPF as vehicle for delivering economic access to justice. This chapter examines the conceptual basis of TPF and its mechanisms and structures. It outlines the complexities of defining TPF and advocates for a comprehensive definition focusing on funding activities rather than individual stakeholders. Chapters Three and Four adopt a doctrinal and comparative approach, examining the evolution and regulation of TPF in common law jurisdictions, namely, England and Wales and Australia, as well as civil law jurisdictions, namely, Germany and the Netherlands. The research highlights disparities between these systems, identifies regulatory gaps and proposes strategies to mitigate potential risks. Chapter Five explores where TPF overlaps with international commercial arbitration. It begins with an overview of the applicable laws and rules, explaining how they govern arbitration. The chapter then contrasts arbitration with litigation, highlighting the unique aspects of TPF in arbitration. It discusses how TPF fits within the arbitration context and examines its implications, emphasising the distinctions and specific considerations relevant to TPF in arbitration. iv Chapter Six delves into the practical implications of TPF in international commercial arbitration, examining the ethical and procedural issues. This chapter examines current international commercial practice concerning maintenance and champerty in arbitration, conflicts of interest, jurisdictional and admissibility considerations, confidentiality, disclosure and costs. It then provides proposals on how to address these issues. This thesis asserts that while TPF offers opportunities to enhance efficiency and accessibility in arbitration, proper regulation is crucial to prevent abuse and ensure fairness for all parties involved. The overarching theme of this thesis is the balancing act required in regulating TPF. While it provides a pathway for parties to gain economic access justice, its profit-driven nature necessitates careful oversight to prevent abuse. This preface introduces the research’s core structure and sets the stage for further discussion on how TPF can coexist with the traditional framework of international commercial arbitration without compromising its integrity. By proposing a balanced approach to TPF regulation, this thesis aims to guide stakeholders toward a more ethical and consistent arbitration environment.24 0Item Restricted Study of Judicial Discretion and Problems of Evidence as Proof in the Saudi Commercial Judiciary(2024-06-02) Turkastani, Ammar; Camp, MartinProof is an integral part of any commercial ruling issued by a judge in commercial courts. However, the means and methods of proof may differ between cases. Some judges may take custom as proof; other judges may accept various types of proof such as interrogation, confession, oaths, inspection, experience, testimony, writing, and presumption. Therefore, this dissertation addresses the complex issues surrounding the admissibility of evidentiary evidence and its weight in judicial procedures before commercial courts in the context of laws issued and updated by the Saudi legislature in a modern era in which modern evidence plays a pivotal role in the final ruling of the commercial judge. Understanding the rules governing the admissibility of evidence and its evaluation is of utmost importance. A recurrent problem in the commercial courts in the Kingdom of Saudi Arabia is that some judges refer to only one specific means of proof in all their rulings, even if the parties to the dispute possess documents related to other means of proof. Therefore, litigation procedures may be prolonged until the judge obtains what he wants for his reasoning to make a ruling, extending to months or even years until the document requested by the judge is brought to the commercial courts. Although the Saudi legislature has established regulations related to proof, in addition to amending many Commercial Laws, some judges cling to the same opinion as before, which they adhere to in their rulings, even though the Saudi legislature has approved many modern regulations and amended commercial regulations. Using a descriptive analysis approach, this research explores how the Saudi commercial judiciary deals with the admissibility of evidentiary evidence issued by the Saudi legislature in modern laws. This dissertation examines the relevant laws issued by the Saudi legislature, previous cases, legal principles, and what Islamic Sharia has approved to provide a comprehensive overview of the legal landscape in the Kingdom of Saudi Arabia as they relate to the use of evidence by the judiciary in commercial disputes. This dissertation also addresses the practical challenges of accepting and evaluating evidentiary evidence in Saudi commercial courts. The dissertation addresses previous issues related to how the commercial judiciary takes presumptions submitted to the commercial courts, questioning opponents before commercial courts, and procedures related to interrogation. Moreover, topics discussed in detail include the confession of each of the opponents in a commercial case; how to take the oath and directing the oath to merchants, and the effect of not swearing; the judge’s inspection of the dispute; the importance of experience and the role of the expert in proof; the role of testimony in commercial cases and how to perform it; writing and its types, and forgery before the commercial court; evidence and the judge’s authority in proof of evidence; custom and its enforcement and sources in Commercial Law. A concluding section discusses proving and adopting modern digital evidence, a problem that presents and ongoing challenge to the Saudi commercial judiciary. Through a descriptive approach and critical analysis of historical issues, this dissertation identifies common trends and differences in the treatment of evidentiary evidence across laws issued by Saudi legislatures, highlighting the need for an adaptable framework that accommodates the development that has occurred in Saudi laws. Furthermore, this dissertation provides practical recommendations for judges, legal practitioners, and Saudi legislatures seeking to improve the handling of evidentiary evidence in commercial trials, suggesting potential reforms in evidentiary evidence and procedural guidelines. In sum, this dissertation comprehensively examines the challenges and opportunities presented by evidentiary evidence in contemporary business procedures. It emphasizes the importance of a careful and adaptable approach to the evidentiary and Commercial Laws to ensure fair administration by the judge and to produce a sound judgment that includes the appropriate evidence in the case.28 0Item Restricted Third-Party Funding in International Commercial Arbitration – Navigating Independence and Impartiality in Context.(Saudi Digital Library, 2023-06-19) Almashari, Abdulaziz; Tachia, MyrtoInternational commercial arbitration has gained widespread popularity as an appropriate alternative mechanism for resolving transnational commercial disputes. Arbitration, despite its benefits, may incur substantial monetary and temporal costs, especially in cases where the conflict is intricate and entails substantial financial resources. Third-party funding (TPF) may serve as a prospective resolution. The utilisation of TPF poses a distinctive array of ethical, legal, and procedural concerns that necessitate meticulous examination. There have been identifiable fears related to the inevitability of disproportionate benefits granted to entities/individuals that have obtained funding. The issues brought about by TPF revolve around the involvement of the financier in the arbitral proceedings – especially considering that the funding organisation possesses an inherent stake in the final outcome of the matter in question. The selection of arbitrators by the parties may create potential conflicts of interest, this may occur when an arbitrator has a significant link with a financier involved in the case. Another point of question is the investigation on whether or not funders have the responsibility to mandatory disclose sensitive and influential information. TPF may pose a potential risk of incentivising the pursuit of frivolous or speculative claims as a result – this is due to the possibility that parties may be more inclined to pursue claims with a low probability of success if they are not assuming the associated costs. In addition, the accessibility of TPF raises significant inquiries regarding its probable influence and effect on the fairness, impartiality, and integrity tenets of the arbitral proceedings. A potential issue that may arise is the possibility of the funding entity exerting inappropriate control over the tribunal with the intent of preserving their financial investment; which hinders the independence of the parties involved in the proceedings. These topics have been extensively discussed and analysed in a public forum: the International Council for Commercial Arbitration (ICCA) and Queen Mary College at the University of London (QMUL) established a Task Force with the purpose of evaluating the issues mentioned above. The study was made publicly available in April of 2018 and suggests the implementation of additional legal prerequisites which may result in increased expenses as well as additional time constraints in contrast with litigation as a form of dispute resolution. It is argued by Bogart that the above-mentioned report’s findings have the potential to diminish the appeal of the process of arbitration, particularly since the concerns highlighted are rarely seen as of major importance by domestic courts. As an illustration, the practise of TPF is extensively utilised within the United Kingdom, despite virtually any kind of mandatory disclosure – The Court of Appeal has recently acknowledged that the practise of TPF constitutes a recognised and authorised activity. The aforementioned apprehensions regarding the domain of arbitration underscore the crucial significance of preserving and guaranteeing its fundamental principles and safeguarding the reputation and validity of the arbitral mechanism. The resolution of such issues ought to be accomplished through the implementation of unequivocal and adequate guidelines that ensure the autonomy of arbitrators. Preserving the procedural tenets of commercial arbitration is of paramount significance, necessitating the examination of the substantially augmented utilisation of TPF within its domain. The primary inquiry that emerges from these apprehensions pertains to the appropriate course of action and likely consequences related to whether or not a successful acknowledgement regarding conflicts of interest and disclosure as well as the demand for greater transparency arising from third-party funders in an effort to uphold the procedural principles of fairness and impartiality. This research essay advocates for increased or standardised disclosure of TPF as a means of preventing conflicts of interest, upholding and maintaining transparency, adhering to principles of procedural good faith, as well as steering clear of the exploitation of the process of arbitration as a whole – holding a differing opinion on Bogart’s notion of TPF, who essentially views it as an extended arm of corporate finance. Non-disclosure of conflicts of interest may jeopardise the fundamental basis of the award made by arbitration and result in the court's refusal to uphold the decision. This is considering that overlapping interests may qualify as a basis for setting aside or denying enactment of an arbitral decision. This essay aims to analyse the application of third-party funding in the context of international commercial arbitration – the methodology of the essay shall be structured in the following manner: The first chapter aims to present a general review of TPF, including the justification for the investigations of this paper, and the identification of the primary factors that render TPF susceptible to conflicts of interest. The second chapter will analyse the ethical considerations of TPF arrangements and their influence on the arbitral procedure. The analysis will assess the potential conflicts of interest that may arise between arbitrators and financiers. The third chapter of this study will analyse the possible advantages and disadvantages of not addressing TPF disputes in the context of international commercial arbitration – it will evaluate the effects of TPF on the parties involved (including the tribunal as well as the mechanism of arbitration in general). Additionally, this chapter will examine the effectiveness of mandatory disclosure as a practical and necessary solution to this issue. The fourth chapter will serve as the concluding section of the study, wherein the primary objective is to present a comprehensive summary of the significant findings. Additionally, this chapter will provide recommendations for future developments and research endeavours in this field.21 0